This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Lori Lynn Mercer, petitioner,


Commissioner of Public Safety,


Filed November 9, 2004


Forsberg, Judge*


Dakota County District Court

File No. C1-03-9642


Eric J. Nelson, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)


Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101(for respondent)


            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s decision sustaining the revocation of her driver’s license for refusal to submit to chemical testing.  Appellant argues that her mental illness rendered her incapable of refusing testing and that her incapacity to refuse testing was apparent to the arresting police officer.  The district court found that the arresting officer was justified in determining that appellant was capable of refusing alcohol concentration testing and that she did in fact refuse such testing.  We affirm.


Hastings police officer Larry Evans stopped appellant Lori Lynn Mercer’s car around 4 a.m. on August 28, 2003, after recognizing the car from separate reports of a possibly intoxicated driver and of a Perkins patron who left the restaurant without paying her bill. 

            Officer Evans approached the car and asked Mercer to step out of the vehicle to perform some sobriety tests.  She stepped out of the car but said that she would have difficulty with the tests because of knee surgery.  Officer Evans attempted to administer a preliminary breath test to Mercer.  After the fourth attempt, Mercer’s behavior changed suddenly.  She started coughing and sputtering and stated that she had asthma and could not blow through the instrument.  She attempted to walk away from Officer Evans and his partner and struggled with them when they attempted to restrain her.  Eventually, Officer Evans and his partner physically restrained Mercer, handcuffed her, and placed her in the back of the squad car. 

            In the squad car, Mercer exhibited increasingly wild behavior.  She kicked at the rear passenger window and bent out the window frame.  As a result, she suffered a deep cut on her foot.  Officer Evans began a digital recording which shows that Mercer screamed for the majority of the ride to the jail.  The content of her screams ranged from wordless shrieks, to threats to kill herself, to cries for her “Mommy,” and to challenges of the basis of her arrest.  At the end of the ride, Mercer asked for her psychiatrist and said she was having a “psychiatric episode.”  She left the car shrieking and screaming.

            At the jail, it was apparent that Mercer needed medical attention for her foot, and an ambulance was called.  Because of Mercer’s uncontrollable and violent behavior, she was held to the floor by six or seven jailors while they waited for the ambulance to arrive.  Officer Evans got onto the floor beside Mercer and tried to read her the Implied Consent Advisory, but he had to stop because she was screaming so loudly that he could not hear himself talk.

            Mercer’s wild behavior continued at the hospital.  Officer Evans attempted twice more to read Mercer the Implied Consent Advisory; she continued to scream throughout these readings.  When Officer Evans asked Mercer whether she wished to speak to an attorney, she screamed “yes.”  She screamed that she wanted to speak to an attorney and that she would not take the test at any time.  Because Mercer said that she would not take a test, Officer Evans determined that she made a refusal. 

            Officer Evans testified that during his 15 years as a police officer he had never heard anyone scream like Mercer did that night.  He also testified that while he has had blood drawn from people when he determined that they were incapable of consent, Mercer was not the kind of person he would take blood from automatically because, according to his observations and experiences, Mercer appeared capable of giving responses. 

Because Mercer refused to submit to alcohol concentration testing, her driver’s license was revoked and her license plate was impounded by the commissioner of public safety pursuant to Minnesota’s Implied Consent Law, Minn. Stat. § 169A.52, subd. 3 (2002).  Claiming that she was incapable of refusing testing, Mercer filed a petition for judicial review.  The district court sustained the revocation because it found that Officer Evans was justified in determining that Mercer was capable of refusing alcohol concentration testing and that she did in fact refuse such testing.  This appeal follows.


“Whether one has refused testing [for the presence of alcohol] is a question of fact.”  Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000).  “On appeal, a district court’s factual findings will not be disturbed unless clearly erroneous.”  Id. 

Any person who drives a motor vehicle within this state consents to chemical testing of her blood, breath, or urine in order to determine the presence of alcohol and of controlled substances.  Minn. Stat. § 169A.51, subd. 1(a) (Supp. 2003).  The driver’s license of a person who refuses such testing will be revoked by the commissioner of public safety for a period of one year.  Minn. Stat. § 169A.52, subd. 3(a) (2002).  “A person who is unconscious or who is otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by subdivision 1 and the test may be given.”  Minn. Stat. § 169A.51, subd. 6 (Supp. 2003).  Mercer argues that she was incapable of refusing consent on the night of her arrest.

The arresting police officer must make a factual determination, in light of all of the circumstances, as to whether the driver is capable of making a rational choice whether to refuse or take an alcohol concentration test.  Villeneuve v. Comm’r of Pub. Safety, 417 N.W.2d 304, 306 (Minn. App. 1988).  This determination must be made from the facts and conditions apparent to the police officer at the time the implied-consent advisory is given.  Id. at 307-08.  “[A] finding of incapacity depends on a record of circumstances such that this court is left with a ‘firm conviction’ that the driver was incapable of making a reasoned refusal.”  Thornton v. Comm’r of Pub. Safety, 384 N.W.2d 606, 608 (Minn. App. 1986) (quoting Stiles v. Comm’r of Pub. Safety, 369 N.W.2d  347, 352 (Minn. App. 1985)).  The facts and conditions apparent to Officer Evans are essential to this court’s determination. 

Mercer argues that the district court clearly erred by finding that Officer Evans reasonably determined that she was capable of refusing testing.  Mercer argues that the totality of the circumstances on the night of her arrest “made it eminently clear to the arresting officers that she suffered from mental illness and was incapable of refusal.”  But Mercer stated that she would not take a test at any time, she responded to Officer Evans’s questions, and she requested an attorney.  Mercer understood that she was being asked to take a test, and she did not provide any evidence that she was incapable of comprehending what was going on around her.  In light of these facts, the district court did not clearly err by deciding that Officer Evans was reasonable in his determination that Mercer was capable of refusal.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.